Public Bill Committee

[Katy Clark in the Chair]

Clause 34  - Related provision: charges for health services

Meg Hillier: I beg to move amendment 97, in clause 34, page 28, line 8, at end insert—
‘(1A) NHS charging provisions may make reference to the need to safeguard public health with particular reference to the prevention of infectious diseases, maternal death and infant mortality for those persons who require leave to enter or remain in the United Kingdom.’.

Katy Clark: I am sure that the Committee will remember that there was a wide-ranging debate on similar issues relating to public health under a different group of amendments on Thursday. I therefore hope that hon. Members will limit their speeches to the amendment and its effect on the Bill.

Meg Hillier: Thank you for that reminder, Ms Clark. I do not intend to repeat many of the detailed arguments that I made last Thursday, but this is a particularly important amendment, because clause 34 redefines ordinary residents to exclude anyone subject to immigration control. Let me briefly remind the Committee of the reasons that I outlined on Thursday in relation to the risk that that poses to UK public health.
We know that primary care is the key place for the diagnosis of infectious diseases. The purpose of primary care is to assess the broadest range of health needs and to identify how best to meet them. Anything that delays someone with an infectious disease seeking medical advice or that prevents them from doing so denies them the opportunity to be diagnosed, which could contribute to the spread of infectious diseases in the community. That includes, albeit not exclusively, HIV. We know that one in four people living with HIV in the UK does not yet know that they have it, so although HIV treatment is exempt from NHS charges in England, to gain access to it, individuals must be diagnosed. Therefore, without the ability to be diagnosed, people will not gain access to that free treatment.
I will not repeat what I said about the problems, particularly in migrant communities, because I think I have made the position very clear—I draw hon. Members’ attention to Hansard from Thursday afternoon. I am sure the Minister is aware of the situation. I hope he has had contact with HIV and public health experts, who all agree that increasing the offer and uptake of HIV testing in a range of non-specialist settings, including GP surgeries, is key to tackling the UK epidemic.
I have made the point that, for example, many of the African families whom I represent would not set foot in a sexual health clinic. They would not go there to seek diagnosis. It is often in the GP setting—the primary care setting—that someone from an at-risk group will be advised to have, or it will be suggested to them that they have, a test for HIV or, indeed, other illnesses. The analysis of risk by a health expert is that if someone is not ordinarily resident—this key clause redefines that phrase—they cannot even access a diagnosis. That is what the amendment is about. I hope that both this Minister and the Department of Health are seriously considering the impact on public health, especially given that public health is now within the remit of local authorities. They do not have any impact on this Bill, so in a way I am speaking for them, as well as for my local communities and communities up and down the country.

Mark Harper: It is a great pleasure to serve under your chairmanship, Ms Clark. I shall take my lead from the hon. Member for Hackney South and Shoreditch, as we talked about these issues a fair bit last week. I just want to reassure her that the change proposed in the Bill does not in itself affect the charging regime. It is perfectly open for the Secretary of State for Health not to charge for access to public health services, which is the current position. The hon. Lady will know that my right hon. Friend the Health Secretary has just consulted on charging provisions for those who currently are normally charged for health provision. I hope she will be reassured by the fact that when my hon. Friend the Member for Guildford was the Minister responsible for public health—I will take the opportunity to say this, at the risk of embarrassing her—she removed charges for HIV treatment for overseas visitors, for precisely the reasons that the hon. Lady has set out.
I know why the hon. Member for Hackney South and Shoreditch has raised the matter, but it is really a matter, as I think I said to her last week, for the Secretary of State for Health when he brings forward his proposals on charging in England. He is very mindful of the issues. To reassure her again, the consultation document that the Department of Health published made clear the high priority that the Department attaches to public health. I can reassure her that we will not do anything that will worsen public health. Of course it is important for those who are in the United Kingdom, even if they are not here legally, to have access to public health treatment, because it has an impact not just on them, but on the rest of the community. That is well understood by both the Home Office and the Department of Health.
I understand why the hon. Lady has tabled the amendment—to get these issues in the public domain. I am sure that the remarks she made last week and today will be seen by the Secretary of State for Health and his officials when he brings forward his proposals, following his consultation. Therefore, in that spirit I ask her to withdraw her amendment.

Meg Hillier: I would like to ask the Minister one further question. He talks reassuringly about his colleague the Secretary of State for Health taking these points seriously, but if he will forgive me, I am not au fait with the exact timings of the announcements about the Health Secretary’s consultation on HIV treatment. Will we have more detailed reassurances about the timetable before Report, Third Reading or when we finally pass this Bill, or not, through the House of Commons?

Mark Harper: I do not think we are far away. The consultation has taken place, and I hear that the Department of Health is thinking through its response. I do not think that a date has yet been set for publishing the Secretary of State’s proposals—I will go away and see whether there is any certainty about that, and maybe I can then update the Committee. The dates are not clear, but I take the hon. Lady’s point. Clearly the proposals will be brought forward before the Bill reaches the statute book, but I agree with her that it would be good if we could see them while it is still in the House of Commons. Let me go away and make some inquiries, and I will see whether I can share any firm timetable with the Committee.

Meg Hillier: I will obviously take the Minister’s word on trust—he is an honourable gentleman and he understandably takes this seriously—but this is primary legislation, which makes a big difference. It is important that we understand what is happening in the Department of Health before we have the opportunity to vote on this issue on the Floor of the House. However, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 ordered to stand part of the Bill.

Clause 35  - Prohibition on opening current accounts for disqualified persons

Question proposed, That the clause stand part of the Bill.

Helen Jones: We are in favour of any attempts to stop people who are here illegally opening bank accounts, provided that those attempts are workable. I want to ask the Minister a few questions about what is proposed and its impact on other members of the community who might be caught up in it. We all know from when we try to open a bank account that all financial institutions are required to carry out due diligence on potential customers, to prevent money laundering. Many of us have sometimes experienced the frustration of saying, “I already have another account with you; you know who I am”. However, we accept that as the price of preventing money laundering.
However, what is the difference between what is called the status check in this Bill and the due diligence that a bank would have to carry out anyway? What extra checks will a financial institution have to carry out? The Bill says:
“carrying out a ‘status check’ in relation to P means checking with a specified anti-fraud organisation or a specified data-matching authority whether, according to information supplied to that organisation or authority by the Secretary of State, P is a disqualified person”.
Not only does that require the bank and its staff to ensure that they check the right documents; it requires the Home Office and the Borders Agency to ensure that the right documents are available at the time. Given the huge backlog of changes in the status of applications, with people applying under different circumstances and so on, I would like to hear from the Minister exactly how that is to be achieved. The status checks required in the Bill apply to someone who
“requires leave to enter or remain in the United Kingdom but does not have it”.
How is a bank to know that when someone walks through the door? The Bill also specifies the checks to be carried out on current accounts, so what happens if someone comes to open a savings account, for example? It certainly is not clear to me.
Nor is it clear what will happen when someone opens a joint account. Let us say that a British citizen is married to someone who perhaps does not have the right leave to be here—perhaps they are going through the process to legalise their position. What then is the impact on the British citizen who wants to open a joint account with their partner? The important issue is that the banks will not know, when someone walks through the door, whether that potential customer has the right to be in the UK.
My concern is that British citizens from black or ethnic minority communities will be targeted for these checks—even though they may well have been born here—simply because the staff working in the bank will need to be sure that they are complying with the law. Anyone with what sounds like a different accent or who is of black or Asian appearance could easily be targeted by this. What guidance will be produced for financial institutions to ensure that that does not happen? What training will be given to staff who have to carry out these checks?
When discussing landlords earlier in our debates on the Bill we saw that the documents are often hugely complex. I suspect that most of us on the Committee would not recognise all the documents that people carry—unless, like my hon. Friend the Member for Hackney South and Shoreditch, we are used to dealing with lots of immigration cases. Can the Minister say how the Government will ensure that this measure works properly, so that we do not end up with what is, honestly, the racial profiling of customers, who would be subject to checks when they should not be?
Another issue is that clause 38 gives the Treasury the power to amend the Act by order. I can see that accounts change from time to time, and there might be a need to do that. We support that, but we want an assurance that the changes to categories of institutions would not include small saving schemes, such as credit unions. I do not think that is the Minister’s intention, but we would like to have that on the record. For such small institutions, these kinds of checks would certainly be unnecessarily burdensome and probably impossible for them to carry out.
We would also like to know what procedures the Government will put in place to ensure that the status checks are carried out quickly. I assume that the checks will be done through the credit industry fraud avoidance system, but what will the Minister do to ensure that those contractors process applications quickly, and that the data they hold are properly protected and do not fall into the wrong hands? It is particularly important to have that speed when someone is here perfectly legally and is simply trying to open a bank account, or when they are being asked to provide documents to be checked, but are in fact a British citizen.
I would also like to hear about the Secretary of State’s use of discretion under clause 35. The explanatory notes say that clause 35(3) allows the Secretary of State discretion over who should be barred from opening an account, because
“there will be some individuals who face legitimate barriers which prevent them from leaving the UK, even though they do not have leave.”
The intention seems to be that the Secretary of State may enable those people to open an account or prevent them from doing so, but what will the criteria be for exercising that discretion? Importantly, what will happen if someone wants to challenge the use of that discretion?
I hope the Minister can answer those points because, as in other parts of the Bill, we do not disagree with the principle, but we want a system that works in practice and does not cause problems for British citizens who are here legitimately and who are often born and bred in this country. I would be very grateful if the Minister could answer those points.

Mark Harper: I am grateful to the hon. Lady for her general welcome, on behalf of the Opposition, for the principle and for the sensible questions she asked. I hope I will be able to deal with them adequately.
The clause sets out restrictions on banks and building societies that prevent them from opening a current account for a person who is present in the UK in breach of the immigration laws and whom the Secretary of State has considered should be disqualified from opening such an account. To be clear, this is not about a document check. We are not asking financial institutions to carry out a document check on top of the checks they already do, which the hon. Lady quite rightly says are for their due diligence for money laundering purposes. This is about their making a check with the specified organisation mentioned in the Bill, to check their data against those data, to decide whether the person should be allowed to open an account.

Helen Jones: The worry I have is that if someone comes in from a black or ethnic minority background, the bank will not know whether they have leave to remain in the UK. The suspicion is that the bank will say, “Produce a document”—a passport or whatever. What will happen if that person does not have a passport?

Mark Harper: First of all, anyone opening a bank account in the United Kingdom has to evidence their identity for the financial institution already, because the institution has to be satisfied under the regulations that they know who their customer is and that they comply with money laundering laws. It is already the case that somebody opening a bank account will be asked to produce a whole range of documents to prove who they are and where they live. We are not asking the financial institution to do that at all. If someone uses a British passport as their ID check for the purposes of the money laundering regulations, the bank will know that they are a British citizen—that they are in the United Kingdom and do not require leave. They will not have to do anything further.
For everybody else, the bank will check the status against a specified organisation. The hon. Lady mentioned CIFAS, which is an organisation against which banks already check people’s financial information. The difference, if the Bill becomes law, is that if the bank checks and discovers that someone does not have leave to be in the United Kingdom and is on that list, they will be prohibited by law from opening a current account. At the moment, the bank can check that information, but there is no legal prohibition on going ahead and opening a bank account for such a person who has no leave to be in the UK.

Helen Jones: I am grateful to the Minister for giving way again; he is being very generous. I entirely understand that point, but that depends on the information held by CIFAS being up to date. What will the Minister do to ensure that the information is up to date?

Mark Harper: It does, but the hon. Lady keeps interrupting me before I can make progress. I was reading through my notes as she was asking her questions and I think I can deal with them all if she permits me, but she can come back in at the end if she does not think I have dealt with them.
Subsection (2) sets out the conditions the individual meets if they are to be disqualified from opening a current account, which is that they are in the UK but do not have leave to be here. Subsection (3) sets out what we mean by a status check, which is a check with a specified anti-fraud organisation and data-matching authority to determine whether the applicant is disqualified. If the bank or building society checks the details of the applicant for a new account with that body and the check does not indicate that the person is disqualified, the bank can safely assume that it can proceed and open the account. As the hon. Lady has picked up, a disqualified person is one who is present in the UK in breach of the immigration laws, and whom the Secretary of State has decided should not be permitted to open an account. As the hon. Lady rightly deduced, that is to give the Secretary of State discretion about whether to forward an individual’s details to the specified anti-fraud organisation or refrain from doing so, rather than making disqualification automatic. That is because there are individuals who are in the United Kingdom who perhaps should not be, but are unable to leave the country for legitimate reasons.
“Opening an account” does include opening an account for a disqualified person jointly with other persons who are not disqualified. That does not mean that the British citizen to whom the hon. Lady referred in her example could not open an account; they simply could not open a joint account with somebody who was disqualified. The provision also covers opening an account where a disqualified person is allowed to act as a signatory or a beneficiary. Indeed, it also applies to adding a disqualified person to an existing account as a signatory or beneficiary.
Subsection (4) sets out the types of organisation that can do the checking service and to which the Secretary of State will provide information. An “anti-fraud organisation” is defined as having the same meaning as in section 68 of the Serious Crime Act 2007, which already facilitates the sharing of information held by the public sector with specified anti-fraud organisations in the private sector for the purposes of preventing fraud. That is the legal basis on which some of this checking already takes place, but it is not mandatory for the financial institution. An order made under that section would be subject to the negative resolution procedure.
Subsections (5) and (6) are relevant to some of the hon. Lady’s other questions. Subsection (5) qualifies the provision in subsection (1)(b) that a bank or building society can open an account if they are unable to carry out a status check because of
“circumstances that cannot reasonably be regarded as within its control”.
For example, if a bank tried to open an account and the service used to do the checking was unavailable—say, due to a technical problem—that would not prohibit the bank from proceeding. That deals with the hon. Lady’s point about the timeliness of a bank being able to do the transactions. Subsection (5) ensures that the provision is proportionate to the risk and sets out the position where the bank requires the payment of a reasonable fee.
Subsection (6) addresses the point about what happens when a person is refused an account, and says:
“A bank or building society that refuses to open a current account for someone on the ground that he or she is a disqualified person must tell the person, if it may lawfully do so, that that is the reason for its refusal.”
That is to ensure against the possibility that there has been a mistake somewhere in the process. If the person is not so disqualified, they can take steps with the Home Office, which can then update the information held by the checking service. The provision about banks and building societies being able to do so lawfully is intended to prevent them from falling foul of other legislation that might prevent them from tipping off individuals in specific circumstances.
The hon. Lady asked why the measure was limited to current accounts and to banks and building societies. This is about ensuring that the measure is proportionate. The reason it is focused on current accounts is that they have the most impact. Without a current account, it is very difficult for individuals to access other lines of credit, such as mobile phone contracts, credit cards and other types of loan, which usually rely on current accounts to make repayments. We have specifically excluded alternative deposit-taking institutions, such as credit unions and mutuals, to ensure that the measure does not adversely impact small institutions. I know that she will welcome that.
The power given to the Treasury to expand the type of accounts covered will ensure that the measure does not provoke market developments, either in the natural order of things or specifically to take advantage of the fact that migrants cannot use current accounts in banks and building societies. This is effectively an anti-avoidance measure to stop the market responding with accounts that would fall outside the technical definition in legislation. I can confirm that we do not intend the measure to apply to small, community, deposit-taking institutions, where the provision would be disproportionate. I hope the hon. Lady welcomes that Government intention.
I think I have covered all the hon. Lady’s questions; I therefore hope she is content that the clause stand part of the Bill.

Question put and agreed to.

Clause 35 accordingly ordered to stand part of the Bill.

Clauses 36 to 38 ordered to stand part of the Bill.

Clause 39  - Appeals against penalty notices

Question proposed, That the clause stand part of the Bill.

Helen Jones: Again, we support the provisions in the clause to ensure that an employer can appeal only if he is given notice of an objection under the Act; just as we support clause 40, making the penalties recoverable as if in a civil court.
We support the measures because we believe that protecting British people and companies from those who seek to undercut wages—and usually to ignore health and safety provisions as well—by employing people who are here illegally is the right decision for everyone. There are still too many companies employing people who are here illegally, often paying rates below the minimum wage or using crowded and insanitary accommodation as part of people’s wages. There are also companies that are employing people who are here perfectly legally but who are not aware of their rights and are kept segregated. Both of those practices are unfair to decent companies that abide by the law, to British workers who find their terms and conditions of work undercut and to those migrants whose desperation is exploited by unscrupulous employers, and so steps should be taken to make it easier to enforce the law.
We have tabled some new clauses on this matter and we hope that they will be debated later, because we want to allow people to compete for jobs on equal terms and to end the exploitation of vulnerable people. I am surprised that the Government have not sought to tackle problems such as the separation of shifts by nationality, or those recruitment agencies that recruit only from abroad, or attempts to offset the legal minimum wage by providing unsuitable accommodation. We will therefore seek to do so with our new clauses, because we think that those matters should be part of the way that we manage migration.
In the meantime, we support the measures to extend the right of appeal only to those who have already objected and to allow outstanding penalties to be registered in court for enforcement, as well as the increase in the maximum civil penalty for a failure to hold copies of documents showing that someone has the right to work in the UK. They are worthwhile measures, but they are not enough by themselves. The Government’s measures will penalise bad employers who break the law, and we want to see that, but it is also important that we take steps to stop such exploitation happening in the first place. That is badly needed but is not in the Bill.
We have seen some high-profile raids, and some employers who employ workers illegally are caught, but unless the Government act to strengthen regulation of the labour market we will not make changes in this area. It is not over-regulation, as many Government Members might say; it is protection, both for people who are here legally and for those vulnerable people brought in illegally who are then exploited. The protection those people need is not in the Bill, and I hope that as we proceed the Government might accept some of our proposals to get to grips with the problem. The clause is a start, and we support it; but it is a slow start and we want to go much further later on in our discussion.
I hope that the Government will be able to agree with us about how we can strengthen the proposals further. We support the clause, but we do not believe that it goes far enough.

Mark Harper: I will resist the temptation to rush ahead to the debate on the Opposition’s new clauses, which we will discuss later. I will make a couple of points in answer to the hon. Lady’s remarks about clause 39 and, since she mentioned it, clause 40 as well.
The hon. Lady is quite right. There is some agreement about the need to crack down on unscrupulous employers for the reasons that she set out. One is their exploitation of individuals in the United Kingdom; another is that by treating individuals in the way they do they undercut legitimate employers who obey the law and follow the rules. That is wrong. Unscrupulous employers also help to facilitate one type of illegal migration, in which individuals are, frankly, duped into coming to the United Kingdom with the promise of a better life only to end up working in unsatisfactory conditions and not receiving a good income, and so would have been better off if they had never made the journey here. That type of path, which sometimes also involves organised crime, is something that we all want to crack down on. Clauses 39 and 40 will improve the position.
Clause 39 is about appeals against penalty notices. Employers will first have to use the administrative review process before bringing an appeal, streamlining the process. That will improve how the system works.
Clause 40 is about making it easier to enforce the recovery of civil penalty debts. At the moment, where we encounter employers who are employing people illegally, even when we use our immigration powers to issue them with a penalty, it can be difficult to recover the penalty. The clause will improve that situation.
The hon. Lady talked about enforcement. One of the reasons why the Home Secretary split up the UK Border Agency this year was to ensure not only—as we debated earlier when we discussed welcoming the best and brightest to the UK—that the visas and immigration parts of the business are focused on customer service for those who pay to come to the UK, but that the immigration enforcement part of the operation, which is effectively a law enforcement command, has a culture that is more focused on the enforcement role. Since we did that, we have seen some improvements—an increased focus on dealing with illegal working operations, increased arrests, and more penalties issued.
Enforcement is welcome. It will make it more difficult for unscrupulous employers to employ people illegally and improve the position of those who choose to follow our laws and not exploit people, because they will not face unfair competition.
The clauses will move the position in the right direction. Obviously, we can have a full debate when we reach the new clauses tabled by the Opposition, but I hope that the Committee will be content to allow both clauses 39 and 40 to stand part of the Bill.

Question put and agreed to.

Clause 39accordingly ordered to stand part of the Bill.

Clause 40 ordered to stand part of the Bill.

Clause 41  - Grant of driving licences: residence requirement

Question proposed, That the clause stand part of the Bill.

Helen Jones: I have a brief question for the Minister. The clause will put into statute the existing informal arrangements to restrict the grant of provisional or full licences to people who have at least six months’ leave to remain in the UK.
As the clause aims to stop people obtaining driving licences and then using them to establish their identity, is six months not a rather short period? Why have the Government chosen that? It would be quite easy to obtain a licence, use it to prove identity, and overstay. Will the Minister clarify that?

Norman Baker: Clause 41 will regularise the position that already exists. As the hon. Lady recognised, the present arrangements are informal. We felt it necessary to provide backing to the position that already pertains. We are not seeking to change the position: we are simply seeking to regularise that which is already there and ensure that it will not be subject to any successful legal challenge. The issue raised by the hon. Lady relates to the position taken by the previous Government, which we are not seeking to alter.

Question put and agreed to.

Clause 41 accordingly ordered to stand part of the Bill.

Clause 42 ordered to stand part of the Bill.

Clause 43  - Decision whether to investigate

David Hanson: I beg to move amendment 98, in clause43,page34,line35,at end insert—
‘(6A) In the absence of a referral under paragraphs (1)(a) or (b) of this section, the Secretary of State may decide to investigate.’.
I welcome you back to the Chair, Ms Clark, after a busy weekend for all of us.
Clause 43 deals with sham marriages and how they are investigated. Amendment 98 addresses the role of the Home Office in investigating sham marriages. The clause is on the decision whether to investigate, which applies if one of two criteria is met. The first is if
“a superintendent registrar refers a proposed marriage to the Secretary of State under section 28H of the Marriage Act 1949”.
The second is if
“a registration authority refers a proposed civil partnership to the Secretary of State under section 12A of the Civil Partnership Act 2004.”
I hope the Committee accepts that we should tackle this and that those here illegally because of fake marriages should find that loophole closed.
The Secretary of State’s decision on whether to investigate a referred marriage or civil partnership is based on whether two conditions are met. Condition A states that the Secretary of State must be satisfied that
“only one of the parties to the proposed marriage or civil partnership is an exempt person, or…neither of the parties are exempt persons.”
The clause also states:
“Condition B is met if the Secretary of State has reasonable grounds for suspecting that the proposed marriage or civil partnership is a sham.”
I wish to test subsection (6), which says that the Secretary of State should decide whether to investigate by looking at guidance published by the Secretary of State for that purpose. I tabled the amendment, which would add subsection (6A), because I am concerned that currently the clause reads that the Secretary of State will investigate if subsection (1)(a) or (1)(b) is met, which is if the superintendant registrar or the registration authority refers concerns over a potential marriage or civil partnership to the Secretary of State.
I suspect that the Home Office has the powers to investigate, but I simply wanted to test with the Minister the extent and range of those, and whether he is satisfied that in the event of the Home Office receiving information independent of either the superintendent registrar or the registration authority, the Secretary of State has the legal basis to undertake his or her own investigation into whether a marriage is a sham. I want clarity on how the clause allows the Secretary of State to undertake that referral.
The Home Office estimates that each year there are 4,000 to 10,000 applications to stay in the UK that are based on a sham marriage or civil partnership. As that is a significant number of cases, this action is needed. My purpose in tabling the amendment, however, was to test whether in the absence of either or both of the criteria in subsection (1)(a) or (1)(b), the Secretary of State’s powers were sufficient to ensure that they could investigate accordingly.
In passing, I will also use the clause to test the Minister on what evidence the Secretary of State would require to undertake the investigation of a sham marriage. I was concerned to read an article only last week in the Camden New Journal, which the Minister will be aware of, which had the headline, “‘Sham Marriage’ Police Storm Real Wedding”. The article says:
“Border police stormed a wedding at the town hall only to find that the service was genuine.”
The police were concerned that that was a sham marriage. I raise that not to discuss the case in particular detail, but because I am interested in what the evidential test will be under the clause.
The clause says that, in making a decision to investigate,
“regard must be had to any guidance published by the Secretary of State for this purpose.”
I accept that I am talking partly to clause stand part, but in addition to the amendment I would welcome some indication from the Minister of what the evidential tests will be under clause 43(1)(a) and (b), and when and if he intends to publish related guidance. This is not a party-political point, but there have already been occasions, such as the case in Camden last week, on which a genuine marriage has been raided to try to expose it as a sham. If a marriage is a sham, I fully accept that such action has to be taken, but even the Minister must accept that if there is information to prove that a marriage is genuine, the worst possible thing that the Home Office can do is what it did last week in Camden. By raiding the marriage and holding it up for some 35 to 40 minutes pending investigation before finding that it was genuine, the Home Office effectively ruined the couple’s wedding day.
My purpose through amendment 98—this also drifts into a clause stand part debate—is to get some indication from the Minister of what the tests will be under clause 43(1)(a) and (b); what guidance will be issued under clause 43(6); when he intends to discuss and publish that guidance; what consultation he has had with registrars on the matter; and what steps he can take to ensure that the incident in Camden is not replicated. Although we may share the objective of cracking down on sham marriages, we also share the objective of ensuring that we do not ruin the wedding day of people who are legitimately trying to get married.

Norman Baker: I am grateful for the right hon. Gentleman’s support for the efforts we are making to tackle sham marriages. He is right that they pose a threat to UK immigration control, and he correctly stated that between 4,000 and 10,000 applications a year are made on the basis of sham marriage. The figure for 2012 shows that the number of suspected sham cases reported by registration officials increased to 1,891 in the past year.
The right hon. Gentleman was particularly interested in the Home Secretary’s ability to take action in the absence of a referral from the registration service. I draw his attention to clause 46(6), which states:
“The provisions of this Part, and any investigation or other steps taken under those provisions (including the decision of the compliance question), do not limit the powers of the Secretary of State in relation to marriages or civil partnerships that are, or are suspected to be, a sham (including any powers to investigate such marriages or civil partnerships).”
It will therefore be open to the Secretary of State to investigate any suspected sham marriage or civil partnership that is drawn to the attention of the Home Office, perhaps by a third party, but that for whatever reason was not drawn to the attention of the Home Secretary under the registration scheme. If the Home Office received information suggesting that a marriage is a sham, that would be investigated. I am sure that the right hon. Gentleman would expect nothing else. I assure him that information received will be properly investigated no matter where it comes from, and I hope that that gives him some comfort.
The right hon. Gentleman asked how the Home Office would investigate the genuineness of a couple’s relationship, and what the criteria would be. There will be a range of potential ways of investigating, including an interview or a home visit if that is considered necessary. The proposed marriage or civil partnership will be assessed against objective criteria, which we will publish as far as we can. Where the Home Office is satisfied on the balance of probabilities that a proposed marriage or civil partnership is a sham, it may take enforcement action against a non-European economic area national before or after the 70-day notice period has expired.
The right hon. Gentleman referred to the situation in Camden. He will understand that because that is an ongoing matter, I cannot comment on it in any detail, but investigations continue and the situation is not, perhaps, quite as he described.

David Hanson: I described that incident because that was how it was reported. If there are different issues involved, they may well be worth looking at. I was simply placing that case on the record, and I did not go into detail. I simply wanted to test the fact that in this case the Home Office appeared to be embarrassed. [ Interruption. ] I take the Minister’s intervention from a sedentary position to mean that there may be more to this than meets the eye. We will see in due course. I did not intend to embarrass the Home Office but simply wanted to say that there are occasions where that issue could arise.
I want to link that discussion with the evidential tests that are required under clause 43(1) and (2) and the fact that the Secretary of State could not undertake an investigation unless the conditions of subsection (1)(a) or (b) are met. Could the Minister clarify what he understands the evidential tests to be under clause 43(1) and whether and when he intends to publish the guidance? What form does he expect the guidance to be in? If the guidance has been published and I have missed it in the welter of papers, I apologise to him now. I am interested to hear his explanation of those issues.

Norman Baker: First, the guidance has been published. I have a copy here. It was published online and is 70 pages long. The right hon. Gentleman may find it useful in dealing with the points he raised.
Clause 43(1) relates to whether the superintendent registrar has reason to believe that a sham marriage is proposed. Under those circumstances, the superintendent registrar is required—there is no discretion—to refer the matter to the Home Office for investigation. It is as simple as that. Obviously it does not mean that there is a cut and dried assessment, but the Home Office will be required to investigate it. The registration official has no discretion on whether to refer a couple under the scope of the scheme to the Secretary of State. He must comply with the regulations made by the Secretary of State as to the form, content and details of the referral.
Provisions in part 4 of the Bill will enable the Home Office to identify and investigate suspected sham marriages and civil partnerships before they take place. That is the basis for taking action under existing powers in cases established as sham. The extension to the notice period for civil partnerships from 15 days to 28 days will also provide more time for the matter to be properly investigated. Hopefully we will avoid the situation where action has to be taken very close to the proposed date of a marriage, which is obviously undesirable for all sorts of reasons. Part 4 will also require persons giving notice to provide additional information and evidence, including nationality, before notice can be taken. I hope that clarifies the points for the right hon. Gentleman.

David Hanson: I will ask one further question under clause stand part, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

David Hanson: I am grateful to the Minister for drawing my attention to 70-page guidance among the wealth of documentation. I will ensure that I read it in detail and absorb it thoroughly in the next three days.
This may be in the Bill, and if it is my fault I apologise, but I am trying to find a reference to the Marriage (Same Sex Couples) Act 2013. The clause refers to the Marriage Act 1949 and the Civil Partnership Act 2004. At some point we will need to recognise that the Marriage (Same Sex Couples) Act has been enacted and that couples of the same sex can now get married. It may appear in some subsection somewhere else in the Bill, but I would welcome the Minister’s clarification of how the Government intend to deal with sham marriages under the provisions that have recently been passed by both Houses of Parliament.

Norman Baker: The intention is that they should be covered—they are covered—but I will write to the right hon. Gentleman with the precise details. He has raised a perfectly valid point. We want to be sure that they are covered. I believe they are, but I will drop him a line to confirm that.

David Hanson: I appreciate that. Same-sex marriages might be covered, but I cannot find anywhere in the Bill the words “Marriage (Same Sex Couples) Act 2013”. Is the Minister saying that those words are not in the Bill or that he does not know? Or is he saying that he believes same-sex marriages are covered? I welcome his writing to me, but this is the moment to question him on such matters. Given that the Marriage (Same Sex Couples) Act is Government legislation, I would welcome his clarification on whether the subject is covered in the Bill now, rather than in a letter downstream.

Norman Baker: My understanding is that the Marriage (Same Sex Couples) Act amended earlier legislation, including the Marriage Act 1949, and therefore does not necessarily exist as a standalone provision that needs to be included in the Bill.

Jim Dowd: In the light of the Marriage (Same Sex Couples) Act, could it be that the term “marriage” as used in law from here onwards refers to marriages of all kinds? Just as they are sanctioned by law, marriage means marriage, whether it is same-sex or the more traditional version.

Norman Baker: Yes, indeed. The hon. Gentleman is exactly right. Marriage is marriage, and I am advised that the Bill covers same-sex marriage, which provides the assurance that the right hon. Member for Delyn wanted. However, he raised a perfectly valid point and I will confirm it in writing to him to clarify exactly where it appears in the Bill.

David Hanson: The purpose of what I am asking is not to trip up the Minister but to ensure that all bases are covered. Given that the Marriage (Same Sex Couples) Act was a fluid piece of legislation only recently added to the statute book, I would be grateful for the Minister’s clarification in due course.

Question put and agreed to.

Clause 43 accordingly ordered to stand part of the Bill.

Clause 44 ordered to stand part of the Bill.

Clause 45  - Conduct of investigation

Norman Baker: I beg to move amendment 60, in clause45,page35,line39,at end insert—
‘(2A) A relevant party must comply with a requirement specified in regulations made under section 46(4) if—
(a) the section43 notice given to the relevant party states that he or she must do so, or
(b) the Secretary of State subsequently notifies the relevant party (orally or in writing) that he or she must do so;
and the relevant party must comply with that requirement in the manner stated in the section43 notice or in the Secretary of State’s notification (if such a manner is stated there).’.

Katy Clark: With this it will be convenient to discuss Government amendments 61 to 95.

Norman Baker: The amendments in this group are minor and technical in nature. They are intended to ensure that the new marriage and civil partnership provisions work as effectively as possible. They will ensure that when the Secretary of State decides to investigate whether a proposed marriage or civil partnership is a sham, the couple in question are required to comply with any requirements notified to them by the Secretary of State. Those requirements may be set out in the notice of investigation given to the couple under clause 43, or subsequently notified to them by the Home Office. The requirements that may be set—for example, to contact the Home Office by a particular date to arrange an interview—will be set out in regulations made by the Secretary of State under clause 46 and will be subject to the negative resolution procedure.
The amendments to schedule 4 on marriage and civil partnerships will do two things. First, they will ensure that a couple referred to the Home Office under the scheme will have to notify us of any change of address. That will be essential to the conduct of any investigation. Secondly, they will require non-EEA nationals who state that they have immigration status that would exempt them from the referral scheme—for example, settled status in the UK—but cannot provide evidence, to meet additional requirements to give notice and then be referred under the scheme. Those are the same requirements for information and evidence—for example, a couple’s usual address—that have to be met by non-EEA nationals who are not exempt from the scheme. We think that that is a fair approach in such cases.
Other amendments to schedule 4 will ensure that should any problem arise from the Home Office’s handling of a case referred under the scheme, we can still allow a couple to proceed with their marriage once the statutory notice period has been completed. That will ensure that a genuine couple are not further inconvenienced in such circumstances.
The amendments will ensure that if the Home Office inadvertently overruns the time period for notifying of a decision to investigate under the scheme—by day 28, or by day 70 if the couple have complied with an investigation—we can still allow a couple to get married or form a civil partnership without further delay on our part and without their having to give notice again and pay another fee. Our procedure should make that unlikely, but such a case might arise, for example, because we have been trying to contact a couple using out-of-date details that they have in fact properly updated.
The amendments to schedule 4 will also allow non-EEA nationals, who are now required to complete civil rather than church preliminaries, to get married in any Anglican place of worship that the church preliminaries would have allowed if they properly complete the civil process: for example, at a church outside the registration districts in which they reside but in which they would have been eligible to marry following church preliminaries. It is appropriate that the changes that we are making to the preliminaries for church marriages should not affect the venues in which such marriages take place.
We are also amending schedule 4 to make minor drafting corrections. We are adjusting the order-making powers to extend the scheme to Scotland and Northern Ireland, to reflect the fact that such an order will not need to provide regulation-making powers for the Registrar General. Scheme-related regulations will be for the Secretary of State, while notice requirements that affect all couples are for local registration authorities under devolved legislation.
These are minor and technical amendments, and I commend them to the Committee.

Amendment 60 agreed to.

Amendment made: 61, in clause45,page36,line31,leave out from ‘by’ to end of line 32 and insert ‘or in accordance with—
(a) subsection (2A);’.—(Norman Baker.)

Clause 45, as amended, ordered to stand part of the Bill.

Clause 46  - Investigations: supplementary

Amendments made: 62, in clause46,page36,line43,at end insert—
‘(ba) notice that a relevant party may be required to comply with one or more requirements imposed by the Secretary of State subsequently in accordance with section45(2A); and’.
Amendment 63, in clause46,page37,line11,leave out from ‘regulations,’ to end of line 12 and insert ‘specify requirements relating to the conduct of investigations which may be imposed on a relevant party by the section43 notice or by the Secretary of State subsequently in accordance with section45(2A).’.
Amendment 64, in clause46,page37,line13,leave out ‘impose’ and insert ‘specify’.
Amendment 65, in clause46,page37,line14,at end insert—
‘(za) a requirement to make contact with a particular person or description of persons in a particular way (including by telephoning a particular number) within a particular time period;’.—(Norman Baker.)

David Hanson: I beg to move amendment 96, in clause46,page37,line20,at end insert—
‘(5A) Requirements made under this section must have due regard to—
(a) the existence of any childcare responsibilities or arrangements; and
(b) the existence of any responsibilities as a carer.’.
The Opposition have no great problems with the clauses on sham marriages, as they are valuable additions to tackling the problem. Clause 46 is simply about investigation following the reports proposed in clause 43. Under clause 46(4), the Secretary of State may require an individual to be present at a number of places or events at a particular time for the purpose of investigating whether a marriage is a sham. Under clause 46(5), regulations may ensure that an individual can be required to be present at a particular place and time; to be visited at home or called for an interview; to provide information orally or in writing; or to provide evidence. All those requirements are reasonable as part of an investigation.
Amendment 96 would simply insert one caveat to those requirements, but it would not prevent any of them from being made. It would not prevent anybody from being present at a particular time, visited at home, interviewed or required to provide information, evidence or photographs. However, it would ensure that circumstances that cause difficulty were at least taken into account. The two caveats that we suggest are:
“Requirements made under this section must have due regard to”
two issues. The first is
“the existence of any childcare responsibilities or arrangements”
and the second is
“the existence of any responsibilities as a carer.”
It is reasonable to tell an individual that they have to report somewhere at a particular time. However, if the Home Office decides that its investigation will take place at 3 o’clock on a weekday, for example, the person in question might be responsible for picking a child up from school at that time. It will not be convenient if the investigation is set for 11 o’clock on a Thursday and that is the one hour of the week when the individual provides care for an elderly relative or another individual.
I am not trying to introduce defences or methods of avoiding the reasonable stipulations in subsection (5). However, if the Minister cannot accept the principle of the amendment, will he give me some guidance on the issue? We might already have guidance in one of the 70-plus-page documents, but I want him to indicate whether is reasonable for an individual to ask for arrangements to be made at a time that does not conflict with child care or carer responsibilities. I do not want to suggest that the requirements should not be imposed, but I want the Home Office to indicate that those two caveats will at least be taken into account.

Norman Baker: The right hon. Gentleman is perfectly right to raise those matters. They should be taken into account, and I assure him that they will be. It is right that an investigation of a couple’s proposed marriage takes account of the couple’s family, work and other relevant circumstances. That must include child care, carer responsibilities and any other arrangements they have. However, matters relating to the conduct of investigations would be better dealt with, in our view, in the statutory regulations that part 4 provides for, rather than in the Bill itself. The requirements that may be imposed on a couple whose proposed marriage is subject to investigation will be set out in those regulations, which will be subject to the negative resolution procedure.
The right hon. Gentleman rightly said that the requirements, for example, to attend an interview with or be visited at home by an immigration official should take reasonable account of family, work and other relevant circumstances of the couple. That includes child care or carer responsibilities or other arrangements that they have. In addition, the circumstances in which a couple may be held to have unreasonably failed to have complied with an investigation, making them unable to complete the notice period, will also be set out in the regulations. Again, those regulations will be subject to the negative resolution procedure. The regulations will ensure that the Home Office, in deciding whether a couple have complied with an investigation of their proposed marriage or civil partnership, takes reasonable account of the sorts of circumstances the right hon. Gentleman describes.
Under clause 45(2), the conduct of an investigation into a proposed marriage or civil partnership must also have regard to any guidance published by the Secretary of State. Such guidance will be used to reinforce the importance of taking reasonable account of family circumstances in the conduct of investigations under the new scheme. I have put on the record my assurance to the right hon. Gentleman, and I hope he will withdraw the amendment.

David Hanson: The Minister has been very helpful. That was the assurance I sought. It does not need to be specified in the Bill, but I wanted to get an understanding that if an allegation is made—we must remember that these are initially allegations—the investigation requirements under clause 46(5) will be subject to a fairness test that takes into account carer and child care responsibilities. The Minister has clarified that, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46, as amended, ordered to stand part of the Bill.

Clause 47 ordered to stand part of the Bill.

Schedule 4  - Referral of proposed marriages and civil partnerships in England and Wales

Amendments made: 66, in schedule 4,page59,line14, leave out ‘(2) to (4)’ and insert ‘(4) or (5A)’.
Amendment 67, in schedule 4,page60,line7, first column, leave out from beginning to ‘is’ in line 13 and insert—
‘(a) The usual address of each party to the proposed marriage
(b) If the usual address of a party’.
Amendment 68, in schedule 4,page61,line6, leave out from beginning to end of line 8.
Amendment 69, in schedule 4,page62,line12 at end insert—
‘(5A) If subsection (2) or (3) applies to the notice, and the notice is not accompanied by the specified evidence required by that subsection, the notice must be accompanied by—
(a) specified photographs (within the meaning of section 27E) of each of the parties to the proposed marriage;
(b) the usual address of each party to the proposed marriage;
(c) specified evidence that the usual address of a party provided in accordance with paragraph (b) is that party’s usual address; and
(d) if the usual address of a party provided in accordance with paragraph (b) is outside the United Kingdom, an address in the United Kingdom at which that party can be contacted by post.’.
Amendment 70, in schedule 4,page62,line41, after ‘(6)’ insert ‘or 28C(5A)’.
Amendment 71, in schedule 4,page62,line45 after ‘(6)’ insert ‘or 28C(5A)’.
Amendment 72, in schedule 4,page63,line3. leave out ‘or 27E’ and insert ‘, 27E or 28C’.
Amendment 73, in schedule 4,page63,line16, leave out ‘or 27E’ and insert ‘, 27E or 28C’.
Amendment 74, in schedule 4,page64,line27, after ‘(3)’ insert
‘in relation to a party to the proposed marriage’.
Amendment 75, in schedule 4,page64,line29, leave out from ‘that’ to second ‘is’ in line 30 and insert
‘that party to the proposed marriage’.
Amendment 76, in schedule 4,page65,line36, leave out from ‘apply’ to end of line 2 on page 66 and insert
‘unless and until one of the following events occurs.
‘(1A) Event 1 occurs if—
(a) the Secretary of State gives the superintendent registrar the section 43 notice, and
(b) that notice is of a decision not to investigate whether the referred marriage is a sham.
(1B) Event 2 occurs if—
(a) the relevant statutory period ends, and
(b) the Secretary of State has not given the superintendent registrar the section 43 notice.
(1C) Event 3 occurs if—
(a) the Secretary of State gives the superintendent registrar the section 43 notice,
(b) that notice is of a decision to investigate whether the referred marriage is a sham,
(c) the Secretary of State gives the superintendent registrar the section 45 notice, and
(d) that notice is of a decision that both of the parties to the referred marriage have complied with the investigation.
(1D) Event 4 occurs if—
(a) the 70 day period ends, and
(b) the Secretary of State has not given the superintendent registrar the section 45 notice.
(1E) Event 5 occurs if the Secretary of State gives the superintendent registrar notice that the duty under section 31(2) is applicable.
(1F) The Secretary of State may give a notice for that purpose only if—
(a) the Secretary of State has given the superintendent registrar the section 43 notice,
(b) that notice is of a decision to investigate whether the referred marriage is a sham,
(c) the Secretary of State has given the superintendent registrar the section 45 notice, and
(d) that notice is of a decision that one or both of the parties to the referred marriage have not complied with the investigation.’.
Amendment 77, in schedule 4,page66,line5, at end insert—
‘(5) In this paragraph—
“70 day period” has the same meaning as in section 45 of the 2014 Act;
“relevant statutory period” has the same meaning as in section43 of the 2014 Act;
“section 43 notice” means notice under section 43(7) of the 2014 Act;
“section 45 notice” means notice under section 45(6) of the 2014 Act.’.
Amendment 78, in schedule 4,page69,line7, leave out sub-paragraph (1) and insert—
‘(1) Section 35 (marriage in registration district in which neither party resides) is amended in accordance with sub-paragraphs (1A) and (1B).
(1A) After subsection (3) insert—
“(3A) In a case where one or both of the persons to be married (“the couple”) are not relevant nationals, a superintendent registrar may issue a certificate for the solemnization of a marriage in a qualifying church or chapel, notwithstanding that it is not within a registration district in which either of the couple resides.
(3B) In subsection (3A) “qualifying church or chapel” means a church or chapel which is not the usual place of worship of the couple but in which it would be possible—
(a) (if section 5(3)(a) were disregarded) for the marriage of the couple to be solemnized in accordance with section 5(1)(a) (marriage after publication of banns), or
(b) (if section 5(3)(b) were disregarded) for the marriage of the couple to be solemnized in accordance with section 5(1)(c) (marriage on authority of common licence).”.
(1B) After subsection (5) insert—
“(6) Where a marriage is intended to be solemnized on the authority of certificates of a superintendent registrar issued under subsection (3A), each notice of marriage given to the superintendent registrar and each certificate issued by the superintendent registrar shall state, in addition to the description of the church or chapel in which the marriage is to be solemnized, that it would be possible for the marriage of the couple to be solemnized in that church or chapel after the publication of banns or on the authority of a common licence (if section 5(3) were disregarded).”.’.
Amendment 79, in schedule 4,page69,line23, leave out ‘national’ and insert ‘citizen’.
Amendment 80, in schedule 4,page71,line3, first column, leave out from beginning to ‘is’ in line 9 and insert—
‘(a) The usual address of each party to the proposed civil partnership
(b) If the usual address of a party’.
Amendment 81, in schedule 4,page72,line1, leave out from beginning to end of line 3.
Amendment 82, in schedule 4,page72,line16, leave out
‘been married or formed a civil partnership’ and insert
‘formed a civil partnership or been married’.
Amendment 83, in schedule 4,page72,line18, leave out ‘marriage or civil partnership’ and insert ‘civil partnership or marriage’.
Amendment 84, in schedule 4, page72,line39, at end insert—
‘(5A) If subsection (2) or (3) applies to the notice, and the notice is not accompanied by the specified evidence required by that subsection, the notice must be accompanied by—
(a) specified photographs (within the meaning of section 8A) of each of the parties to the proposed civil partnership;
(b) the usual address of each party to the proposed civil partnership;
(c) specified evidence that the usual address of a party provided in accordance with paragraph (b) is that party’s usual address; and
(d) if the usual address of a party provided in accordance with paragraph (b) is outside the United Kingdom, an address in the United Kingdom at which that party can be contacted by post.’.
Amendment 85, in schedule 4,page73,line20, after ‘(6)’ insert ‘or 9A(5A)’.
Amendment 86, in schedule 4,page73,line24, after ‘(6)’ insert ‘or 9A(5A)’.
Amendment 87, in schedule 4,page73,line28, leave out ‘or 8A’ and insert ‘, 8A or 9A’.
Amendment 88, in schedule 4,page73,line41, leave out ‘8 or 8A’ and insert ‘8A or 9A’.
Amendment 89, in schedule 4,page74,line40, leave out ‘(2) to (4)’ and insert ‘(4) or (5A)’.
Amendment 90, in schedule 4 page76,line1, after ‘(3)’ insert ‘in relation to a party to the proposed civil partnership’.
Amendment 91, in schedule 4,page76,line3, leave out from ‘that’ to second ‘is’ in line 4 and insert
‘that party to the proposed civil partnership’.
Amendment 92, in schedule 4,page77,line6, leave out from ‘apply’ to end of line 16 and insert
‘unless and until one of the following events occurs.
‘(1A) Event 1 occurs if—
(a) the Secretary of State gives the registration authority or authorities the section 43notice, and
(b) that notice is of a decision not to investigate whether the referred civil partnership is a sham.
(1B) Event 2 occurs if—
(a) the relevant statutory period ends, and
(b) the Secretary of State has not given the registration authority or authorities the section 43 notice.
(1C) Event 3 occurs if—
(a) the Secretary of State gives the registration authority or authorities the section 43 notice,
(b) that notice is of a decision to investigate whether the referred civil partnership is a sham,
(c) the Secretary of State gives the registration authority or authorities the section 45 notice, and
(d) that notice is of a decision that both of the parties to the referred civil partnership have complied with the investigation.
(1D) Event 4 occurs if—
(a) the 70 day period ends, and
(b) the Secretary of State has not given the registration authority or authorities the section 45 notice.
(1E) Event 5 occurs if the Secretary of State gives the registration authority or authorities notice that the duty under section 14(1) is applicable.
(1F) The Secretary of State may give a notice for that purpose only if—
(a) the Secretary of State has given the registration authority or authorities the section 43 notice,
(b) that notice is of a decision to investigate whether the referred civil partnership is a sham,
(c) the Secretary of State has given the registration authority or authorities the section 45 notice, and
(d) that notice is of a decision that one or both of the parties to the referred civil partnership have not complied with the investigation.’.
Amendment 93, in schedule 4,page77,line19, at end insert—
‘(5) In this paragraph—
“70 day period” has the same meaning as in section45 of the 2014 Act;
“relevant statutory period” has the same meaning as in section43 of the 2014 Act;
“section 43 notice” means notice under section43(8) of the 2014 Act;
“section 45 notice” means notice under section45(6) of the 2014 Act.’.—(Norman Baker.)

Schedule 4, as amended, agreed to.

Clause 48  - Extension of scheme to Scotland and Northern Ireland

Amendments made: 94, in clause48,page38,line3,leave out from ‘person’ to end of line 6.
Amendment 95, in clause48,page38,line32,leave out from beginning to end of line 33.—(Norman Baker.)

Question proposed, That the clause, as amended, stand part of the Bill.

David Hanson: The answer may be there in the Bill, but I am interested in when and how the Secretary of State proposes to bring forward the order to ensure that the referral and investigation scheme is extended to Scotland and Northern Ireland. What discussions have there been, and where are we in relation to this matter?

Norman Baker: This is a matter which I know interests the right hon. Gentleman, as he has already indicated. The Bill provides the Home Office with an order-making power, as he will recognise, to extend the referral and investigation scheme to Scotland and Northern Ireland. We obviously intend to use this order-making power following discussion with the Scottish Government and the Northern Ireland Executive. The Scottish Government shares our concern about sham marriage and is already taking action in a Bill before the Scottish Parliament to extend the notice period to 28 days.
We have already had some initial discussion with the Scottish Government about how the new scheme would work in Scotland, which, as the right hon. Gentleman will recognise, has different marriage legislation and legitimate marriage tourism, which we support and want to protect. We are also discussing the proposals with colleagues in Northern Ireland. We are keen to ensure that Northern Ireland does not become a loophole in this area and we will take action accordingly.

David Hanson: That is what I thought. I was trying to test with the Minister where we are. He has said that, by order, he will look to extend the proposals to Scotland and Northern Ireland. He has helpfully indicated that he is in discussions with both the Scottish Executive, who have different marriage laws, and the Northern Ireland Assembly. I asked the question simply because the Home Office, with due respect to current Ministers who are not dealing with this issue, has form on these matters. Already this year we have had a number of pieces of legislation that are potentially to be extended to Northern Ireland; as yet they have not been extended. For example, the National Crime Agency and its asset recovery powers are not extended to Northern Ireland.
There is a loophole. If I am a criminal and want to ensure that my assets are not recovered by the state under that legislation, I will go and operate my business from Belfast. I know that the Minister has had discussions, which are ongoing, but I simply ask him in a helpful and constructive way when he intends to bring forward orders for Scotland and Northern Ireland. If this Bill passes both Houses of Parliament and clause 48 becomes law by March or April next year, the provisions on sham marriages from clauses 43 onwards will be present in the Act for England and Wales, but not for Scotland and Northern Ireland.
What would that encourage? If I want to undertake a sham marriage, will I do it in Camden in the hope of potentially getting away with it, or decide to have a sham marriage in Belfast or Gretna Green, where there is an accordingly high turnover of marriages? My point is not that the Minister is not going to investigate the matter and bring forward an order. I am asking whether the order is likely to be introduced after the legislation has been enacted in England and Wales. If so, there will be a discrepancy in the provisions for sham marriages across the United Kingdom. These matters are devolved to Scotland and Northern Ireland, but the Minister’s job is to ensure that the loopholes, about which he is concerned for England and Wales, are closed in Scotland and Northern Ireland.
I therefore gently say that it is not sufficient for the Minister to say that he will bring forward an order. I am interested in when, in what form and how he will do so; what discussions there are; whether there are any problems with our Scottish and Northern Irish colleagues; whether they intend to operate different regimes; and ultimately when the provisions—which we have supported—will be applicable in a form that is effective across the whole of the United Kingdom.

Norman Baker: The right hon. Gentleman is presenting two different arguments. The first is that we should wrap this thing up as soon as possible and have it all in order, and the second is that we should have proper discussions with the Scottish Parliament and the Northern Ireland Assembly. Having genuine discussions, as we want to, will obviously take time. The key point is that we need the order-making power before we can do anything, and the order-making power comes with Royal Assent to the Bill. Until we have that obviously we cannot make any orders, but it is quite right that we are in discussions now.
We are proceeding in a proper order, and the right hon. Gentleman would expect nothing less. If he is suggesting that there is a problem, I think that that is misplaced. The indication is that we do listen to our colleagues in the devolved Administrations. The Minister for Immigration referred to the Police Ombudsman for Northern Ireland as an example of where we have been able to anticipate and take proper action in order to take account of sensitivities. That is what we are doing in this particular area as well.

David Hanson: With due respect, I am not arguing against myself; I am arguing for clarity from the Minister. The Bill provides for an order-making power. Royal Assent will give the Minister an order-making power, but Royal Assent could be on a day in April or May next year. Who knows when Royal Assent will be? If it is in April or May next year and we have Royal Assent at that stage, the Bill’s provisions will potentially be enacted on a date after that which is chosen by the Minister. I simply ask him whether he anticipates the order-making power he has under clause 48 being in place to make the order which would ensure that the United Kingdom is covered by the provisions in an effective way, rather than having a two-tier development of those provisions.
We do not have the National Crime Agency operating in Northern Ireland and we do not have the asset recovery provisions operating in Northern Ireland, because the Home Office has not yet negotiated with Northern Ireland to put those provisions in place. I am taking the Minister’s assurance in a positive way, but he has not yet said whether he anticipates these provisions being enacted in Scotland and Northern Ireland in a reasonable time post-Royal Assent and implementation in England and Wales. Ultimately that is still a backdoor loophole, and if I wished to undertake a sham marriage, I would simply get on a boat at Holyhead and go to Belfast to do it there.

Norman Baker: The right hon. Gentleman is in danger of making a mountain out of a molehill. Of course, we already have powers to deal with sham marriage, and in the Bill we are strengthening those powers. Clause 48, which is where we are at the moment, provides an order-making power to extend the scheme to Scotland and Northern Ireland, as he recognises. We intend to use the power following discussions with the Scottish Government and the Northern Ireland Executive. Those discussions have begun. We intend work on the detail of draft secondary legislation to proceed in parallel with the passage of the Bill through Parliament, in order that we both have discussions with the devolved Administrations and get the order-making power in place as soon as possible.

William Bain: It would be very helpful for the Committee if the Government could indicate a time frame for when they would like an order relating to Scotland and Northern Ireland to be put in place following Royal Assent, if this Bill is enacted. Can the Minister provide some indication of his preferred timetable?

Norman Baker: Again, I return to the first point I made. It is not possible to argue on the one hand that we want the power as soon as possible, and argue on the other hand that we should have proper discussions with the Scottish and Northern Ireland devolved Administrations. We are having sensible and meaningful discussions, which is what everybody would expect, and they are taking place in parallel with the passage of this Bill. We want to get the legislation right, but our intention is that, subject to the satisfactory outcomes of the discussions, the powers will be in place as soon as possible after Royal Assent. That is what the hon. Gentleman would expect.

John Robertson: The fact that the discussions are taking place in parallel is not the point. The point is when we are likely to have the law on either side of the border and in Northern Ireland at the same time. We do not want Northern Ireland and Scotland to be places where people can go if they want a sham marriage. We want more than simply some discussions: we need to know when these things will be enacted.

Norman Baker: I am in danger of making the same point again and again. There are already powers to stop sham marriages. We are strengthening those powers, so the idea that there is somehow the massive loophole that the Opposition have described is simply not the case. I will reiterate yet again that it is also the case that the devolved Administrations share our desire to improve the regulations on sham marriage—the Scottish Government in particular is keen to take action on that front—and I therefore do not anticipate that there will be particular problems between us and the devolved Administrations.
There is nothing unusual about what we are doing. It is something that happens with any Bill of this nature: we have discussions and prepare the ground work while the Bill is going through Parliament and enact the order after the Bill has received Royal Assent. That is the standard procedure for any Bill in Parliament and it is no different for this one. We will get the provisions in place for the whole of the UK as soon as possible.

Question put and agreed to.

Clause 48, as amended, accordingly ordered to stand part of the Bill.

Clauses 49 to 53 ordered to stand part of the Bill.

Schedule 5 agreed to.

Clauses 54 to 56 ordered to stand part of the Bill.

Clause 57  - Immigration advisers and immigration service providers

Question proposed, That the clause stand part of the Bill.

Katy Clark: With this it will be convenient to discuss the following: That schedule 6 be the Sixth schedule to the Bill.
Government amendment 48.

Norman Baker: Again, this is a technical amendment, correcting a minor error in the drafting of the transitional provisions in part 8 of schedule 8, which relates to the regulations of immigration advisers. One of the aims of the Bill is to simplify the regulatory framework for bodies overseen by the immigration services commissioner. In particular, schedule 6 will remove the commissioner’s power to exempt an organisation from the requirement to be registered—for example, because it is a charity.
As currently drafted, the transitional provisions in schedule 8 go further than intended, by providing that those advisers who were previously exempt from registration could in theory be investigated by the commissioner for breaching rules that applied only to registered advisers and so did not apply to the exempted advisers. If not corrected, that would provide an inappropriate and unintended retrospective power to the commissioner. That is what we are now seeking to remove with amendment 48.

Meg Hillier: I tabled some amendments for today—I think they are not in order—because it is important to get the Minister to answer on a couple of things.
One of things is the fee required by the Office of the Immigration Services Commissioner for small organisations to register. Even in areas with dense legal support such as London, increasingly there is often a shortage of advice, and people will go to charities and small organisations. Some of those organisations in my constituency are very small, employing just one person who provides legal advice on immigration among other things, and they do not have a great deal of money. It would be helpful if the Minister could clarify what the fee is and what the strategy will be for charging fees, which could put small organisations out of business. In the end it will cost the system, the Government and everybody a lot of money, as well as causing a lot of distress.
In previous sittings we touched on the problems of poor quality legal advice in the early stages. This measure has the potential to militate against the good work done by small organisations. In parts of the country where there is a desert of formal legal advice, having small charities providing it is the only way that many people can get advice without travelling long distances. What happens when a registration is cancelled? We saw problems in the past when the Refugee Legal Centre and the Immigration Advisory Service closed down. There were problems for many people in getting access to their documents.
I am all for the commission shutting down bad legal advice, which we would all agree is a good thing. One of the distressing things we see in our constituencies is when people have been given bad legal advice, such as the woman with twins whom I saw at my surgery yesterday. Those organisations need to be shut down, but there is then a problem for the client—often, the victim—who has given them all their information and paperwork, often original documents. Although there is a requirement on those organisations to hold on to information, they were not good in the first place, so they will not necessarily be good at holding on to information. There needs to be some requirement about that.
It would be good to hear from the Minister how the Government intend to ensure that we do not have the problems we had when the Immigration Advisory Service closed down. It is worth highlighting the fact that, as well as causing problems for clients, it caused problems for the UK Border Agency, the tribunals and the courts. The Immigration Law Practitioners’ Association was closely involved in dealing with the administrators for both organisations. It had to go to court in 2012 to obtain a three-month window during which IAS clients could retrieve their files. It was a bit Heath Robinson, which probably dates me—that is, patched together, rather than having a good process in place. I hope the Minister will consider this, so that he can come back with some words of comfort and, if possible, an amendment or a commitment to put something in regulations before Report.
My other concern is about what happens when someone makes an appeal on a decision made by the Home Office. The Home Office has an internal review or picks up that there has been a problem; the Secretary of State then says, “We have changed our mind about the decision.” That has happened to some of my constituents. The individual concerned has already made the appeal and paid for it; it is natural justice that the Home Office should refund the whole fee, or even just part of it, because it is not the individual’s fault that the decision had to go to an appeal. Rather, there has been a mistake by the Home Office. We need to remember that in the middle of this are human beings who are often paying a lot of money out of meagre incomes or supported by family and friends. To rich MPs, a few hundred pounds might not seem much money, but to most of my constituents it is.

Norman Baker: I am pleased that the hon. Lady has raised issues on this clause because it is an important clause, which all Members should welcome. Everyone will recognise that the immigration advice sector has sometimes attracted opportunistic and unscrupulous immigration advisers who seek to play on vulnerable people and tend to abuse the immigration system for their own benefit. It is right that we take steps to deal with that. The present system, which was introduced in 1999, is over-complicated and needs additional strength to improve regulation of the sector. It is worth putting on record the five key changes we propose.
First, we will simplify the scheme so that advisers who charge for their services and those who do not are subject to the same regulatory scheme. Secondly, a new duty to immediately cancel the registration of unfit, incompetent or defunct advisers will be brought in. Thirdly, there will be a new power for the commissioner to apply to the tribunal to suspend advisers who are charged with serious criminal offences. The fourth and fifth changes extend the commissioner’s powers of entry—to include entry for the purpose of inspection and entry to private dwellings from which regulated businesses are operating—and introduce a requirement in all cases that a warrant be obtained.
We think that will lead to improvements in the quality of immigration advice and service, and reduce the harm caused by dishonest and incompetent advisers. Speaking as a constituency MP, over the years I have seen people who have had their individual circumstances adversely affected through the provision of bad advice and its consequences. It is sometimes difficult to unpick those situations, so I am strongly in favour of these new powers.
The hon. Lady asked about fees. I refer her to paragraph 2 of schedule 6, which will simplify the regulatory framework. We intend, through paragraph 2, to create a single scheme whereby advisers will be registered whether they charge for services or not. Advisers currently exempted by the commissioner will be registered automatically without having to apply when the provisions come into force.
The point that interests the hon. Lady is that the Government believes that organisations that do not charge for their services should not have to pay a fee. The amendment in paragraph 3 will enable the fees order to provide for fee waivers. The Government intends to lay an order, subject to parliamentary approval, that will require the commission to waive fees for those organisations when they apply or reapply for registration in future. I hope that meets the point that concerned the hon. Lady.
The hon. Lady also asked about the safeguarding of client files. The Office of the Immigration Services Commissioner sets and monitors standards for record keeping and file management. We are not persuaded that the administration of client files in the situation where a company is wound up is an appropriate function for the commissioner as regulator. I appreciate that the hon. Lady might not agree with that, but that is the view we have taken.

Meg Hillier: I appreciate that the work of a regulator can be extended so much that it stops focusing on its role, and I am in concord with the Minister’s comments about closing down bad legal advisers. However, we saw a real-life situation where people had difficulty claiming their files. That can be devastating for an individual. It is also difficult for the Home Office to deal with a case where the original paperwork has all gone. In fact, that potentially opens up the Home Office to scams, because all someone would need to do is go along to the Home Office and say, “I was a client of the organisation and it’s lost all my paperwork,” and they could start all over again. There are a number of reasons why this issue is important. Given that the Minister is clear that the Government will not put this matter to the regulator, what does he suggest to ensure that unscrupulous companies that have been closed down do not destroy or lose the paperwork? How will clients get hold of that paperwork in future?

Norman Baker: As I mentioned, the OISC sets and monitors standards of record keeping. Ultimately, if somebody wants to destroy or wilfully lose files there is not much to be done. I accept that when files disappear, whether in this situation or case files from an MP’s surgery, there can be unfortunate consequences if paperwork is held in only one place. Clearly it is sensible, if possible, for individuals to keep copies of their own material. It is beyond the regulator’s correct duties to impose this extra one, and not only for the reasons the hon. Lady gives. We want the regulator to concentrate on the matters central to the commissioner’s work, rather than expand into other areas. It is also unclear what the effect would be. It is clear that advice is already given on record keeping and file management; if that advice is ignored, it may equally be ignored if files are retained rather than destroyed. Although I accept that the consequences for an individual can be severe, I am not clear that anything the hon. Lady wishes to introduce into the Bill would be an improvement.

Meg Hillier: I really seek comfort from the Minister. I appreciate the issues for the regulator, but I have suggested involving the regulator because at the moment there is no other obvious place for records to go. If the regulator goes in and has serious concerns about a very bad organisation and closes it down that day, what interest does that organisation have in keeping files? The sanctions are not so great. If that organisation is no longer trading, there is a cost to storage and retrieval that it might want to let go. In extremis, there needs to be some power. The regulator itself might not be involved: it might decide to get another organisation to take it over. However, giving the regulator that power allows it to ensure that those files are kept. People can keep copies, but sometimes the originals will be with the immigration adviser. They are the valuable documents, and they often have to be there because of the adviser’s direct dealings with the Home Office.

Norman Baker: First, it is worth pointing out that the powers we are introducing in the Bill are designed to remove unscrupulous and ineffective advisers from the process. Therefore, the number of occasions when people behave in an unsatisfactory way, such as those the hon. Lady described, should be minimised in future. That is the whole purpose of including these additional provisions in the Bill. Secondly, as I mentioned, there is guidance from the OISC on the provision of safeguarding client files. Ultimately however, whether those files are safeguarded is not a matter to which I think legislation can provide a satisfactory answer. If somebody wants to wilfully destroy a loose file, they will do so irrespective of the legislation. The hon. Lady raises a valid point about the consequences for individuals. I will reflect to see whether anything can be done, but she is painting a situation that is likely to be relatively rare, particularly if our provisions have the effect that we want them to have. However, this is obviously an issue about which the hon. Lady is rightly concerned, and I will reflect on it. I cannot, however, see a way of achieving the 100% certainty that we would all like to see.

Meg Hillier: I thank the Minister for that tiny crumb of comfort. It is worth reminding the Committee that the Refugee Legal Centre and the Immigration Advisory Service were not cowboy outfits; the difficulty was that people could not get documents. There is always a problem even with the better providers, such as those that ended up closing down. I seek a final reassurance from the Minister that we can perhaps engage with this discussion outside of Committee—this might be something that the regulator needs to look at outside of this Bill. This is an important issue that we need to resolve. I am not asking for a lot of money to be spent, nor am I asking for huge new investigative powers for anyone. This is about protecting both the individual who is claiming and the Home Office, because if this sort of thing happens—as it has—it creates an awful lot of work and cost for the taxpayer. Indeed, it happened as recently as 2012, and it took a court order to get access to those documents. That was a real situation, and if I may say so, I think the Minister is being a little complacent. I hope we can co-operate on this issue, because we can deal with it. I will bring it back on Report.

Question put and agreed to.

Clause 57 accordingly ordered to stand part of the Bill.

Schedule 6 agreed to.

Clause 58  - Embarkation checks

Question proposed, That the clause stand part of the Bill.

Helen Jones: We have not tabled any amendments to this clause, although we might return to it on Report. For the moment, I want to look at what the Government are planning and, again, how it will work in practice. Schedule 7, which this clause brings into effect, seems to move towards privatising immigration checks in a way that causes concern not only for us, but for many of the travel firms that would be involved. The Home Office has said that these provisions will allow those who have a role in dealing with outbound passengers to become designated persons to perform checks to establish a passenger’s identity and
“to collect the data necessary to identify threats or persons of interest and to confirm departure.”
So far, private companies involved in the immigration process do not have a great record—we think of Capita sending texts telling British citizens to go home or the complaints against G4S. It is not encouraging. In this case, the companies that the Government want to become involved are themselves very wary of becoming involved. In its briefing to us, British Airways said:
“The important task of border security should not be transferred to airline employees whose primary role is to provide customer service. Airline or airport operator staff are not sufficiently qualified to carry out exit checks on behalf of the Home Office.”
However, that is exactly what schedule 7 will provide for. The schedule can require unqualified staff to carry out checks, some of which might be sensitive. For example, under paragraph 2, they may examine people who are leaving.
Those staff are not immigration staff, and they are not trained to carry out such checks. What record is to be kept by them? How will they know the right things to check and the right questions to ask? They may also require a person to furnish them with the information asked for. I find that a bit bizarre, coming from a Government that rejected ID cards. It seems strange to allow someone who is not a police or immigration officer to start carrying out checks on people at the border.
Paragraph 3 of the schedule will allow a designated person to take and retain a passport. I have great reservations about someone who is not an immigration or police officer taking away someone’s passport. Proposed sub-paragraph (4A) of schedule 2 to the Immigration Act 1971 states that if a passport is retained, it must be delivered to an immigration officer
“as soon as reasonably practicable”,
but there is nothing in the Bill to say what that means. What details will be provided to someone whose passport is taken? Will they include the name and status of the person retaining it? If there is a need to take a passport from someone, why not simply call an immigration officer to do it? What redress will a person have if someone makes a wrong decision?
We are also worried about what training will be provided to staff who are required to carry out checks. The Government are trying to make staff who may simply be checking passengers through the gates designated persons. BA also said that
“the actual immigration check and decision is a core function of the Home Office. BA’s customer service staff are not adequately qualified to take on the responsibility of immigration officers, yet the proposal in the Immigration Bill creates the powers for the Home Office to compel a carrier or port operator to designate a person to effectively take on the role of an immigration officer.”
BA points out that it has approximately 3,000 customer service staff involved in the checking in and boarding of passengers. Under the Bill, that all those staff could be forced to take on the new role, which raises a number of concerns for the company. Those include a significant increase in responsibility for that group of employees; additional training requirements, including down time while training is conducted; extra cost to the business for training and recruitment; and a significant potential risk to border security. That will of course be the case if people who are not immigration officers take on that role.
The Government frequently complain about what they call burdens on business, but they seem quite willing to place this burden on companies without any real consultation. It is not surprising that companies are concerned about the proposal. Let me draw the Minister’s attention to evidence we received from TUI UK & Ireland —I still think of it as Thomson—which clearly states:
“Fundamentally, we disagree with this proposal on principle. Immigration checks whether inbound or outbound are part of the Government Duty to protect the public and as such these functions are funded by the taxpayer. The proposals will effectively outsource this core function of the state to transport operators”.
The company has a point. It is also concerned about how the proposal will work in practice. It states, in relation to Thomson Airways and other airlines, that
“the boarding gate is the last place any carrier wants to refuse carriage for whatever reason…as such refusal inevitably leads to a delay whilst their baggage is found and offloaded.”
British Airways points out that a major flaw in the proposal is that many passengers now check in online or at automated kiosks, and pass through security without speaking to a BA staff member. It states:
“We are further looking at processes to automate the entry to security screening and boarding processes on some flights. The addition of a new exit check into this process will negate the benefits of these new automatic processes, adversely affecting our customers”.
BA says that will result in boarding times increasing by perhaps 40%.
That makes me wonder whether the Government consulted the industry before going down this road. The Home Office could of course do much better if it was making progress with the e-Borders scheme, but as we have seen from recent reports, it is not doing so. I suspect that the proposal is in the Bill precisely because of the Government’s failure to make any progress on e-Borders; it is about placing the burden elsewhere.
We do not yet know who the designated person will be, what training they will receive or how the training will be paid for. Will it be paid for by the Government, or will it be a burden on the companies involved? As drafted, the Bill suggests that a designated person—whoever they are—and an immigration officer will have exactly the same powers. Reading that, one is forced to the view that having cut the UK Border Force, the Government are now desperately trying to find a way to make up for those cuts. However, they are doing so in a way that will not work: they are trying to get people to do checks on the cheap. Exactly what discussions has the Minister had with the industry about that?
What about the staff involved? How will a designated person be selected? Will they be volunteers, or will they become a designated person by virtue of the office they hold, and if so, what is the position of staff who do not want to carry out the duties? How will people’s employment rights be affected if they refuse, given that their employer is under an obligation to carry out the checks? That is an important point: someone who joins an airline or travel company is not signing up to be an immigration officer, yet they might have to become one under this proposal. The carrier might be under a duty to have someone to provide the checks, and the proposal brings into question the position of staff who do not want to carry them out.
What will happen with transit passengers? British Airways points out that there will be additional complications in the introduction of exit checks because of the large proportion of transfer passengers going through Heathrow airport. They do not cross the border into the UK, so they will not need an exit check, which means that airlines will have to develop processes to separate passengers into those who require a check at the gate and those who do not. How will that be achieved? We had representations from Thomson, which pointed out that, given Thomson Airways’ operations across the UK, there will not only be a significant increase in cost surrounding the regular requirements that will be needed for members of staff who have to undertake those checks, but there will also be significant cost and logistical implications to ensure that those staff are always available. Furthermore, the cost of embarkation checks for its cruise business would be disproportionate for the relatively small number of UK departures it undertakes. It says:
“We feel that this will hurt the UK cruise industry, as a number of cruise lines, including ourselves, have the option of reducing or eliminating UK calls, in favour of running from other European ports with less onerous immigration requirements.”
That is a serious matter for a number of large ports in this country that rely on cruise ships coming in for a large part of their revenue, as well as ports such as Liverpool that want to attract more cruises. Has the Minister had any discussions on that matter?
The Minister also knows that the industry is concerned that it might be an offence for an operator to refuse to carry out the exit checks. Paragraph 6 of schedule 7 allows the Secretary of State to give directions to carriers or operators of ports to ensure that the functions are carried out.

John Robertson: I feel a sense of déjà vu coming on. Some years ago, the Scottish Affairs Committee had a similar discussion about ships in Orkney. Has my hon. Friend spoken to the new Secretary of State for Scotland about this? He was one of the chief advocates for trying to ensure that ships were looked at with much more care and that the Home Office, or the Border Agency in those days, had much closer contact.

Helen Jones: My hon. Friend raises an interesting and important point, of which he clearly has more knowledge than I. It would be interesting to hear the view of the Secretary of State. It would also be interesting to know what discussions Ministers have had with the devolved Administrations and how the measure will affect businesses in Scotland, Wales or Northern Ireland, all of which have ports of call for cruise ships.
BA says that it
“has concerns that the Bill will enable the Home Office to make it an offence for any airline or airport operator who is non compliant in carrying out these exit checks. The detail of this offence and what it would entail is very vague in the Bill and we would welcome further clarity of what the offence might look like in practice.”
I think that that applies to the members of this Committee as well. What will be the penalty for non-compliance? What is the position of an employer who cannot find a member of staff who is willing to be a designated person? An employer might say that they are willing to have their staff carry out these checks—that seems unlikely, given the representations that we have received—but the staff will not do it; they refuse to do it. The employer cannot force them to do it, as it is not in their contract, which the employer cannot change without an agreement on the variation of contract. Have Ministers talked to their colleagues in the Department for Business, Innovation and Skills about the effects of employment law interacting with the proposal? If it is not in someone’s contract to do this, they can only be made to do it if they agree a variation in their contract. Variations in contracts have to be done by agreement.
The Government have not really thought this through. It seems like one of their panic reactions to something that they think “needs doing”, largely because they do not have enough immigration officers to carry out checks at the border. We warned that border security would suffer from the reductions that they made in numbers of immigration officers. Instead, they want to get people to do it on the cheap.

William Bain: My hon. Friend is making a powerful argument. Does she share my concern that the Committee is not enjoying the benefit of a detailed impact assessment, either from the Home Office or from the Department for Transport, to determine where the costs of the additional checks will ultimately fall? Is it not a concern that passengers might end up having to meet the cost of the additional bureaucracy?

Helen Jones: My hon. Friend is exactly right. That is the point made by the airlines in their submission. There is a cost on business not only for the initial training but for the downtime while people are trained. There will also be the cost of updating people’s training when the rules change, as they inevitably do, and the cost of that downtime. The fear is that those costs will then be passed on to passengers.
The Government cut the number of immigration officers to save money, found that they could not enforce border security effectively and are now trying to do it on the cheap, passing on the cost to business and ultimately to passengers. If that is the case, the Government need to be up-front about what the costs are and who will pay them. As with a number of the provisions in the Bill, the provisions’ workability and impact in practice have not been thought through. We need to hear from the Minister exactly how it will operate. What discussions has he had with the industry? What will be the position of staff members who do not want to be a designated person or, as I said, of an employer who wants to carry out the checks but whose staff refuse to take them on? Will that employer be penalised under the Bill’s provisions?
The Minister seems to think that what we are discussing is something to be taken lightly. I assure him that it will not be taken lightly by the staff at the sharp end who will have to undertake the checks every day. We want to hear from him in much more detail how it will be done, how it will work and where the costs will fall. When we have heard that, we will consider whether to return to the issue on Report.

Meg Hillier: I endorse what my hon. Friend has said. There are concerns on practical grounds alone. I will highlight to the Committee an experience that I had recently. I was travelling to Australia on family business, and it turned out when we got to the check-in desk that my husband’s visa had a different birth date from his passport. We were alarmed, as hon. Members will appreciate—we were on a very expensive visit to a dying family member—but the person at the check-in desk said, “Oh, it’s all right; I’ll just ring Canberra and fix it.” It was easily done, but as a former Immigration Minister I was slightly alarmed that it was so easy, within the famed Australian immigration system, just to ring Canberra and say, “I’ve seen the passport, and it’s fine.” That individual took the passport, and I watched where they were going. Again, my slight nervousness as a former Immigration Minister was probably kicking in, but we were relieved to get on the flight.
That highlights what my hon. Friend said. What checks will be made on the staff doing the checks? Being a proxy for the immigration service is quite a different job from working at check-in. It is not that I doubt the professionalism of those staff, who do a good job, but would anyone be exempt from taking on that responsibility? Immigration officers must have a warrant and must undergo certain security checks, but the same level of check will not be made for check-in staff.
Obviously, airside checks are made on staff working at airports, but a range of different staff do check-in. It is often outsourced, which is another issue to consider. I have been in small airports at which a hard-pressed person is working down the queue, which often goes back to the gate—the lounge or coffee bar area merges into one with the gate—to check people’s photographic identity documents, such as a passport. Anyone coming through the airport could switch places with someone whose boarding pass has already been stamped.
We are relying on a lot of ifs, buts and maybes. We are putting the UK border in the hands of amateurs—they are amateurs in this respect—some of whom do a better job than others. I have spoken to airlines in the past about that, and I know that they often outsource. They have one person at the departure gate who is obviously pressed to get people through on tight boarding schedules, particularly for the budget airlines. If we are really saying that the British border is to be managed by Ryanair and easyJet, the British public might be rather alarmed.
The measure comes from the same Government who abolished fingerprints in passports, which would have sped many people through automatic gates, because it would have been simple for people, certainly British citizens, to go through that process. The Government have not addressed how the process could be mechanised, but mechanisation or automation might solve some of the problems without putting the onus on the airlines. Members of the British public are used to automated check-ins, which are straightforward to go through. The Bill will take away all the time that that have saved, because people will have to go through another manual check.
I want clarity from the Minister on the degree to which shipping is included in schedule 7. I speak as a former petty officer in the merchant navy, so I have previously worked alongside British immigration officers on ships on the Portsmouth-France routes, and I saw the long immigration queues.
There are problems with the geography of many of our ports. Unlike airports, at which everyone eventually gets to a departure gate and is penned in while they go through the system after some sort of check-in, seaports are a different kettle of fish. There is not much space. Cars queue and there is a different approach to getting passengers on board. The Government’s proposals could lead to departures being seriously delayed. The Bill does not make it clear what exactly the proposals are for ports. Perhaps the Minister could clarify that.
An important question is how seriously the Government take immigration control, because there are pinch points in the UK where immigration offenders can be caught. If the Minister has not been, I recommend that he visits Stranraer and Cairnryan, which are in a very nice part of the world. The ferry goes over to Larne in Northern Ireland, so the journey is intra-UK, but there are a staggering number of illegal people travelling on that route. There is a system whereby text messages are sent between people who are trying to evade the British immigration system to ensure that they go either to Stranraer or Cairnryan, depending on which has the lowest presence of police and UKBA officials. The Government, under the Minister’s predecessor, reduced the presence and activity of UKBA in those ports. Although there is no immigration between Northern Ireland and Scotland, as it is an intra-UK journey, immigration offenders are still caught there. Perhaps the Government could look a little closer to home in trying to address the problem of immigration offenders, rather than having the blanket approach of allowing every budget airline in the world to be a British border force by proxy.
The Government have messed up on e-Borders and stopped fingerprints in passports, but they are trying to get the good folk who work for easyJet, Ryanair and so on to be our border control. The Committee deserves an explanation of why the Minister is going down that worrying route.

Robert Syms: One of the joys of being a Member of Parliament is that one has to serve on an immigration Bill Committee at some point. One of the first Committees of which I was a member was on the Immigration and Asylum Act 1999. The Whips had fallen out, so we started at 4.30 pm and went all the way through the night to 1 am. I am glad the Whips on this Committee seem to be more business-like. One feature of that Act was fines for ferry operators, road hauliers and airlines for carrying illegal immigrants. The previous Government, like all Governments, put burdens on businesses. All Governments want to have the best possible immigration system.
The Government just want to ensure that those who collect an awful lot of information and are responsible for the safety of passengers can collect it and deal with the immigration authorities in as seamless a fashion as possible, so that we know who is going in and out of the country. So far, we have not been able to do that in the UK, which is strange considering that we are an island.

Meg Hillier: I am sure the hon. Gentleman is aware of advance passenger information, which allows airlines to share information about who is travelling. It took us years of negotiation in Europe to secure that, and the current Government finally signed the deal. We looked at the system recently in the Public Accounts Committee, and it seems to be beginning to work well. It is not there yet, but it is getting to the point where it will deliver. It is on its way to becoming a success story, and we should celebrate it.

Robert Syms: Absolutely. The airlines now collect an awful lot of information. I am sure it is not beyond the wit of man, the immigration authorities and the airlines to find a way of working so that the system benefits the airlines and immigration authorities.
The hon. Member for Warrington North made an impassioned plea on behalf of BA and others. However, I am not entirely sure whether the Labour party is in favour of exit checks. Lynton Crosby would like to know.

Mark Harper: This has been a wide-ranging debate. I was smiling in response to the hon. Member for Warrington North because it is strange to be lectured on border security by a party that, as we now know, relaxed border security checks for a number of years as a mechanism for managing queues at airports. It takes one’s breath away and demonstrates that we cannot Labour seriously on this subject.
We now have a much more robust process at our borders. We have an operating mandate for the UK Border Force, which means that everybody coming through our ports has their documents checked. We have proper assurance about people coming into the United Kingdom, and we do not just relax the checks because the airport is a bit on the busy side. That is what happened for several years under the previous Government, as we know from the reports of the chief inspector of borders and immigration.
My hon. Friend the Member for Poole, who has served on a number of Bill Committees, brought a useful perspective. His point that the previous Government rightly introduced responsibilities on carriers to carry out checks before they carry people, and penalties for failing to do so, demonstrates that the points raised by the hon. Member for Warrington North, although valid, were perhaps a little overstated.

Nicholas Soames: May I, too, support the point made by my hon. Friend the Member for Poole? I have also been on a number of immigration Bill Committees over the years, and the airlines have always assisted when asked to do so. As a matter of course, the airlines already undertake fairly extensive checks. To portray them as jobsworths who refuse to help is thoroughly unhelpful and flies in the face of reality.

Mark Harper: My right hon. Friend makes a very good point. I will come on to advance passenger information, which my hon. Friend the Member for Poole also mentioned, in a second.
Before I forget, the hon. Member for Glasgow North West referred to the cruise industry in Orkney and Shetland, and mentioned the current Secretary of State for Scotland. I assure him that in both his constituency capacity and as Secretary of State, he takes a close interest in these matters, and I have discussed them with him. At the moment we are working with the industry to consider how best to deliver proper immigration checks in a way that allows the cruise business in the Scottish islands to be successful. The Secretary of State, in both his capacities, has discussed these matters with me and the industry, and the people he represents in his constituency and in Scotland can be pleased with his efforts.

John Robertson: One of the main problems there was the drugs coming in off the ships. It was not only the people who were on the ships enjoying themselves who were not being checked properly, but the crew and various other people. The Secretary of State for Scotland, as the MP for Orkney and Shetland, raised the issue, and hopefully he is examining it now.

Mark Harper: The hon. Gentleman makes a good point. We still have to make proper checks. The key is to do them in a way that works with the grain of businesses and their business processes. I will say a little more about that in a moment.
The hon. Member for Warrington North was a little guilty of making a mountain out of a molehill. The provisions are designed to work with the grain of business processes. Let us take, for example, the debate that largely focused on airlines. When my hon. Friend the Member for Poole referred to the provisions that the previous Government had made, the hon. Member for Hackney South and Shoreditch took him to task and suggested that perhaps he was not aware of advance passenger information from airlines, which of course he is.
Airlines already give the Government a significant amount of information. It is probably less likely that the exit check provisions will apply to airlines, because we already have significant coverage of passengers coming into and out of the United Kingdom. We get advance passenger information from airlines and we are already able to use that information. We know whether people have come in or left. At the moment, we do not have such extensive information for ferry operators and for international rail, but I will come to how those areas might work.

Helen Jones: The Minister clearly thinks that very little will be different under the Bill, but the airline operators and travel industry think differently. How many times has he met representatives of the industry recently to discuss the provisions in the Bill?

Mark Harper: I will come on to that when I set out what we are actually proposing.
For airlines, we already have very good coverage. We already screen a significant number of passengers who come into and out of the United Kingdom, and that number is increasing. When the director general of the Border Force gave evidence to the Public Accounts Committee, he set out the information and made the point that we have another significant carrier coming on board with these proposals, which will get our coverage to a higher level for airlines.
We also want to ensure that we put sensible exits checks in place on non-airline routes—ferry journeys, cruises and international rail journeys—for which we currently do not collect advance passenger information to the same extent as we do for airlines. There will be various ways of doing that. We could simply replicate the primary control point that we have on people’s entry to the United Kingdom. We could hire loads more people and have a load of checks that we conduct before people can travel. We have thought about that, but, apart from the significant cost to the taxpayer, it would put a significant burden on how the business is run.
The hon. Members for Warrington North and for Hackney South and Shoreditch both drew attention to some of the ways in which travel companies are trying to streamline the way their operations work to make travel quicker and easier for passengers. The point of the powers in the Bill is to allow us to put in place procedures that work with the grain of business processes. For example, where travel operators are already collecting information, as they frequently do either for security reasons or as part of their business process, they could be empowered to share that information with us and we could therefore make checks.
We do not want to put in place an enormously burdensome process. We are not talking about the power to decide whether people can exit the United Kingdom; we are talking about working with carriers and port operators and trying to have provisions that fit well with their business.
The hon. Member for Warrington North asked about the discussions that we have had. We are discussing the issue with various industry bodies. The Home Secretary has met representatives of the maritime industry. Officials met TUI yesterday, and I understand it was reassured by our engagement and welcomed the opportunity to continue the discussions. The position was similar with the maritime industry. The Home Office clearly set out our intention to work with carriers and port operators, to link with their existing business processes to ensure that checks take place. To be clear to the hon. Lady, I say to her that we do not expect that decisions on denying boarding will be taken by the boarding and checking staff. That is not the intention at all.

Henry Smith: TUI Travel, which operates Thomson Airways, is located in my constituency. I spoke to the company yesterday and it confirmed that it had met the Home Office yesterday morning. The company has expressed some concerns about the operation of schedule 7. However, I am grateful to my hon. Friend the Minister for the clarifications and reassurances that he has given this morning.

Mark Harper: I am grateful to my hon. Friend for that intervention. I know that he takes a close interest in these matters, and he obviously has a close constituency interest regarding Gatwick airport. We will continue to have discussions with those in the travel industry. As I said, the intention is to work with the grain of their processes. The hon. Member for Hackney South and Shoreditch mentioned, for example, that some of our seaports are very different from our airports. She is absolutely right, and there will not be a one-size-fits-all solution. She knows that the business model for ferry operators is different from that for cruise operators, Eurostar and Eurotunnel. Some operators check individuals, and some carry passengers in cars that are being transported. There will be different solutions to fit the different business models.
The intention behind the proposals in the Bill is to use those existing business models. If we did not have the powers in the Bill, I am sure that we would discover at some point that we want to use existing information that had been collected, perhaps as part of the business process, and we would ask the carrier. As my right hon. Friend the Member for Mid Sussex said, carriers usually want to be helpful in these matters. However, we may well then discover that there was a data protection barrier or that they were not able to share the information with us, or that most carriers wanted to comply but some did not, and it is obviously important to have a level playing field. The point of the provisions is to give us the legal power to use existing information and existing processes; that is the intention behind what we are doing.
We will continue to have this dialogue with industry. I think there was a question about trying to turn transport operators into immigration officers, but that is absolutely not what we are doing. What we are talking about are powers to perform basic checks about someone’s identity, and to confirm departure.
I listened to the personal experiences of the hon. Member for Hackney South and Shoreditch about her various travels around the world and her former job; I am surprised that we did not get on to her school days. Perhaps if we had had long enough we would have. However, let us consider what happens already. Already, when we check in in person we present a passport. If we do it online, we have to put in all the details. We have to show our boarding card and passport, or there is facial identification when we go to the boarding gate. All that interaction already takes place. I simply do not think that someone on a check-in desk asking us for our passport is some enormous departure from current practice. We want to ensure that the existing processes for collecting information are properly utilised.
However, I suspect that the biggest change will not be at our airports at all. The hon. Lady said that we already collect significant amounts of advance passenger information, and my right hon. Friend the Member for Mid Sussex rightly said that we have good co-operation with airlines. They are keen to assist us. They do not want to have people travelling on their flights who should not be; they do not want to bring in immigration offenders or people who may be a security risk. We are more likely to utilise the new powers in areas where we have less good advance passenger information, or none at all. As I have said, we want to work with the grain of business processes; we do not want to put burdens on businesses to do things that they would not otherwise do.

Meg Hillier: May I say in passing that the Minister must think I have a boring life, since all my comments were about recent travel?
If what the Minister says is true, it seems that this Bill contains wide-ranging powers that will not be used in most cases, because of the benefits of advance passenger information. Is this a power grab by the Home Office to allow itself powers that can be used in future, which the Minister does not think need to be used now? If so, why are those powers in the Bill?

Mark Harper: I think that the hon. Lady is misunderstanding what I have said—not on purpose, I am sure. I am simply saying that for passenger journeys into and out of the United Kingdom by air, we already have a system put in place by the previous Government, as she correctly said, and continued by us. We collect a significant amount of information already as part of airlines’ normal business. We already have that information, we use it and we check it against our immigration systems.
However, we do not have good coverage, as the hon. Lady will know from her previous role, of passengers who depart from the United Kingdom by sea or international rail. That is where we want to use existing information and existing business processes, rather than putting in place a costly, burdensome process. As I said, the alternative to working with carriers—using information that they currently collect and perhaps examining their business processes—is effectively putting in place the equivalent of passport checks on outbound journeys. That would require more space at ports, which does not exist and which would have to be paid for. It would require staff, which would be costly, and that cost would fall on the taxpayer. It would also put a barrier in the journey process. I recognise that a lot of ports are looking into making the process as swift as possible by offering online check-in and so on. We have no wish to insert a process that slows things down or makes travel more burdensome.
We want to work with the grain of how businesses operate. The Home Secretary made clear the spirit of our discussions when we she met the maritime industry, for example. We want to work with the industry, and we recognise that ports are different. As the hon. Lady recognised, they are of different sizes and have different staffing levels and different business models. We will almost certainly use a different approach at different locations, depending on the business model, the size of the port and what is sensible.
I hope that I have reassured the hon. Lady that the Home Office wants to proceed in a consensual way with carriers. We want to continue the same sort of partnership working that we use for advance passenger information. We want things that work with the grain of business processes. We recognise that businesses have a job to do—running a profitable travel business—and we do not wish to make that any more burdensome. The proposals in the Bill are meant to ensure that we can move forward with travel providers.
I think that I have addressed the questions asked by the hon. Member for Warrington North—she will decide whether I have done so satisfactorily—and by the hon. Members for Glasgow North West and for Hackney South and Shoreditch. I therefore commend the clause to the Committee.

Question put and agreed to.

Clause 58 accordingly ordered to stand part of the Bill.

Schedule 7 agreed to.

Clause 59  - Fees

Question proposed, That the clause stand part of the Bill.

Julian Huppert: I hope to be fairly brief. I wish to raise general concerns about what is happening to fee levels. I notice that the Minister has tabled a written ministerial statement today about the targeted consultations on the principles of the matter; perhaps he can say a bit more about what they are.
I am concerned that time and time again since I have been in the House, fees have risen rapidly. There are two issues: the level of fees, and whether they are fairly related to the service that people get. People must now pay for a series of visas, often for 30-month periods. They must then get another visa, and another. If somebody had a series of visas with a 30-month extension and then received settlement, that would be £2,270 in fees if it all happened in the UK. If extended for people who wish to settle, it could be well over £3,000. That is a concern, particularly when it comes to students. We must be careful about not putting the prices too high for students, as we have discussed.
The other issue is the quality of service provided. There have been numerous occasions—last year was particularly bad—when the service provided fell far short of what is considered acceptable. People are paying very high fees but are not always getting the satisfaction they would expect. If they pay a service for a 24-hour turnaround, they expect to get that, and if they have paid for another defined period, they would expect to get the service in that period.
I notice that one of the considerations listed in the Bill is
“fees charged by or on behalf of governments of other countries in respect of comparable functions”.
It is critical that the Minister ensures that we do not put our prices up higher than other countries, as we will not be able to attract the brightest and best students who wish to come here and so on. We should also consider whether people are getting what they deserve. It seems unjust for someone to pay a fee of, in some cases, well over £1,000 for a decision to be made in a given time period if that time limit is not in fact met. That is particularly important in the case of premium services. Will the Minister say a little more about the principles he is consulting on, so that they are on the record?

Meg Hillier: I want to comment briefly on a couple of issues, one of which I mentioned in my remarks on schedule 6. I agree with the hon. Member for Cambridge that where someone pays a fee for a service and that service is not of a good quality, there is currently no sanction on the Home Office. Many of my constituents have paid money in such circumstances. People come to see me and say, “Look, I am at the 12-week limit,” and I heave a weary sigh as I realise that people believe that the 12-week service period is stuck to. However, routinely—in the majority of cases in my constituency—the time limit is missed.
People are paying a fee for a service and are not getting that service. We could strengthen the Minister’s hand by introducing a sanction on the Home Office or a reimbursement of fees, or else by re-examining the fees, to ensure that the staff for whom he is responsible are meeting the targets they are set. That would keep the Government’s overall focus on the importance of welcoming migrants to this country and dealing quickly with those who should not be here. It would underline the message the Minister has given previously in Committee—that Britain is open for business.
At the moment, many of my constituents, who come from a range of backgrounds, whether they are spouses, students, people asking for leave to remain or overstayers trying to regularise their stay—I have less sympathy in that last case—have paid a fee for a service that routinely is not delivered. That is the reality. The previous Government also have to take responsibility for that situation. The Bill gives the Minister an opportunity to galvanise his staff through, perhaps, sanctions on the Home Office or a loss of income if its targets are not met. That can sometimes sharpen minds amazingly.
The other issue I mentioned previously was that of cases in which an appeal is lodged because of a Home Office decision but the Home Office changes its mind and the appeal is no longer necessary. A substantial fee applies in those cases, but I feel it is natural justice to say that if the Home Office has made a mistake it ought to pay for that mistake.

Mark Harper: I will deal first with the principal issue of delivering good value for money. If the Government were to give fee refunds when a service fell below a certain level, it would be a bit pointless; all that would happen would be that the burden would fall on the taxpayer. We are not dealing with a private sector company where the burden would fall on the shareholders.
The hon. Lady made a valid point, which was that we should deliver better customer service. Last week I discussed at length what we are doing with the creation of the new UK Visas and Immigration. Our performance outside the country has remained good. I acknowledge, as I have before in the House, that in the last financial year our in-country performance fell below what we would expect—in some cases, considerably so. We have made considerable progress in improving that position during the current financial year, and the new director general is looking at having some more meaningful service standards. In some cases, our current commitment—that a certain percentage of decisions will be made within a certain period—is not at all meaningful for customers, as people do not have much of an idea when their decision will be made. We are looking at a more meaningful way of raising the bar and giving customers something that means something to them and that we can be held to account for. We will bring forward proposals on that in due course.
We are mindful of the general point that the hon. Lady and my hon. Friend the Member for Cambridge raised—that we should try to deliver good customer service—and that I take very seriously. We are determined to deliver on that.
The purpose of the fee changes that we are making is to ensure that we can take more factors into account when setting fees. We are looking not just at the costs and benefits that a migrant gets from a service, but at the impact on economic growth, the sorts of people coming to the UK, the extent to which we wish to attract them and the competition with other countries, bearing in mind fees charged by other Governments for comparable immigration functions. For example, the fee for a short-term visit visa, which is currently £80, is set and maintained at a level significantly below the cost of processing, to keep us internationally competitive. Part of the point is to ensure that we can take a wider range of factors into account and set the fees at the right level.
Our aim is also to ensure that the process works better. The current process of changing fees, which we do on an annual basis, is complex and time-consuming. The provisions in the Bill will enable us to simplify and streamline the process while retaining the requirement for those proposals to be properly debated and agreed by Parliament, not just by the Executive.
Having listened to what my hon. Friend the Member for Cambridge has said, and notwithstanding the challenge that the hon. Member for Hackney South and Shoreditch quite rightly made about delivering good customer service, I believe that our proposals will enable us to keep parliamentary scrutiny in place but also to be more flexible, respond more quickly to changes and look at a wider range of factors. My hon. Friend highlighted some of those factors: we want to ensure that we have a competitive visa system, that we can still attract bright students to Britain—I know that is important for him, given the universities in his constituency—and that we can still attract people here to work and contribute to the country.

Question put and agreed to.

Clause 59 accordingly ordered to stand part of the Bill.

Clause 60 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Anne Milton.)

Adjourned till this day at Two o’clock.